SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us,” and “our” refer to the EPA.

Table of Contents

I. Background

II. The EPA's Evaluation and Action

III. Statutory and Executive Order Reviews

I. Background

On July 20, 2020 (85 FR 43692), the EPA issued a rule promulgating final disapproval and conditional approvals for the MCAQD regulations listed in Table 1 that had been submitted by the ADEQ to the EPA for inclusion into the Arizona SIP.

Areas classified as “Moderate” for nonattainment for an ozone standard must implement reasonably available control technology (RACT) for major sources of NO_X and volatile organic compounds. The Phoenix-Mesa area is classified as “Moderate” nonattainment for the 2008 ozone standard. The 2020 action on the regulations in Table 1 supported our subsequent rulemaking on the requirement that the MCAQD demonstrate their implementation of RACT, in a submittal called a “RACT SIP,” for emissions sources in ozone nonattainment areas under the Act, specifically for major sources of NO_X .^[1] In the 2020 final rule, we determined that the submitted County rules included several deficiencies that precluded our approval of the rules into the SIP, and thus the County failed to implement RACT for major sources of NO_X. Therefore, our 2021 action on the RACT SIP included a disapproval of the SIP revision under title I, part D of the Act, relating to requirements for nonattainment areas. Pursuant to section 179 of the CAA and our regulations at 40 CFR 52.31, this disapproval action on the RACT SIP element under title I, part D started a sanctions clock for imposition of offset sanctions 18 months after the action's effective date of February 8, 2021, and highway sanctions 6 months later.

On June 23, 2021, the MCAQD revised Rules 323 and 324 and on June 24, 2021, ADEQ submitted the SIP revision to the EPA for approval into the Arizona SIP as described in Table 2 below.

The revised rules in Table 2 are intended to meet the commitments to revise the rules we had previously based our conditional approval on in our 2020 action. In the Proposed Rules section of this Federal Register , we have proposed approval of the revised MCAQD Rules 323 and 324. Based on this proposed approval action (and our proposed action approving Rule 322 ^[2] into the Arizona SIP that regulates other major sources of NO_X at power plants, which are not addressed by Rules 323 or 324), we are also taking this interim final determination, effective on publication, to defer imposition of the offset sanctions and highway sanctions that were triggered by our 2021 action's disapproval of the major sources of NO_X RACT element, because we believe that the submittal corrects the deficiencies that triggered such sanctions.

The EPA is providing the public with an opportunity to comment on this deferral of sanctions. If comments are submitted that change our assessment described in this interim final determination and the proposed full approval of MCAQD's submittal demonstrating RACT for major sources of NO_X with respect to the title I, part D deficiencies identified in our 2021 action, we would take final action to lift this deferral of sanctions under 40 CFR 52.31. If no comments are submitted that change our assessment, then all sanctions and any sanction clocks triggered by our 2021 action would be permanently terminated on the effective date of our final approval of the major sources of NO_X RACT element. ( printed page 47634)

II. The EPA's Evaluation and Action

We are making an interim final determination to defer CAA section 179 sanctions associated with our disapproval action on January 7, 2021, of MCAQD's RACT demonstration for major sources of NO_X with respect to the requirements of part D of title I of the CAA. This determination is based on our previous proposed approval of Rule 322 and this concurrent proposal to fully approve Rules 323 and 324, which resolves the remaining deficiencies that triggered sanctions under section 179 of the CAA.

Because the EPA has preliminarily determined that MCAQD's submittal of Rules 322, 323 and 324 address the conditional approval issues and deficiencies under part D of title I of the CAA identified in our 2020 and 2021 actions and is fully approvable, relief from sanctions should be provided as quickly as possible. Therefore, the EPA is invoking the good cause exception under the Administrative Procedure Act (APA) in not providing an opportunity for comment before this action takes effect (5 U.S.C. 553(b)(3)). However, by this action, the EPA is providing the public with a chance to comment on the EPA's determination after the effective date, and the EPA will consider any comments received in determining whether to reverse such action.

The EPA believes that notice-and-comment rulemaking before the effective date of this action is impracticable and contrary to the public interest. The EPA has reviewed the State's submittal and, through its proposed action, is indicating that it is more likely than not that the State has submitted a revision to the SIP that corrects deficiencies under part D of the Act that were the basis for the action that started the sanctions clocks. Therefore, it is not in the public interest to impose sanctions. The EPA believes that it is necessary to use the interim final rulemaking process to defer sanctions while the EPA completes its rulemaking process on the approvability of the State's submittal. Moreover, with respect to the effective date of this action, the EPA is invoking the good cause exception to the 30-day notice requirement of the APA because the purpose of this notice is to relieve a restriction (5 U.S.C. 553(d)(1)).

III. Statutory and Executive Order Reviews

This action defers sanctions and imposes no additional requirements. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified inExecutive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject toExecutive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject toExecutive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods underExecutive Order 12898 (59 FR 7629, February 16, 1994).
• Is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified byExecutive Order 13175 (65 FR 67249, November 9, 2000).
• Is subject to the Congressional Review Act (CRA),5 U.S.C. 801 et seq., and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and comment rulemaking procedures are impracticable, unnecessary or contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a good cause finding for this rule as discussed in section II of this preamble, including the basis for that finding.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 3, 2022. Filing a petition for reconsideration by the EPA Administrator of this final rule does not affect the finality of this rule for the purpose of judicial review nor does it extend the time within which petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see CAA section 307(b)(2)).

Authority: 42 U.S.C. 7401 et seq.

87 FR 47632